A springing power of attorney is a legal document designed to address specific triggering events under which the designated agent (or attorney in fact) can act on behalf of the grantor (or principal).
The document is often used in estate planning to establish who will be responsible for your affairs if you become incapacitated. Once the predetermined conditions are met, the power of attorney “springs” into effect, ensuring that the agent can step in only when necessary.
How Does a Springing Power of Attorney Work?
A springing power of attorney automatically allocates certain permissions to a designated agent when certain conditions occur. For instance:
- A person with a progressive illness may designate someone to take over medical decisions once their health deteriorates to a specific point.
- Military personnel deployed overseas may grant family members back home power to make financial or legal decisions on their behalf, depending on the specific circumstances outlined in the document.
When to Use a Springing Power of Attorney
The springing POA does not automatically go into effect. Instead, it “springs” into use when certain conditions are met:
- You are unable to make decisions for yourself.
- You are declared incompetent.
- You cannot handle your financial decisions.
Incapacity Definition
The legal definition of incapacitation differs depending on the state. Generally, a doctor must officially confirm you are incapacitated, meaning you are incapable of managing your own affairs or engaging in appropriate personal care.
Springing vs Durable Power of Attorney
While there are several types of power of attorney, the most common designations are springing and durable POA. These two instruments differ significantly in when and how they come into effect and the needs they serve:
- The springing power of attorney takes effect only when a triggering event occurs. It ensures that they retain decision-making power over their property, health, and finances until they are deemed legally incapacitated or upon the occurrence of a specific event.
- The durable power of attorney takes effect immediately upon signing; that is when the agent’s powers begin. It does not rely on specific triggering events or the principal’s capacity.
How To Write a Springing Power of Attorney
Many laws and regulations have strict guidelines to establish what qualifies as incapacitation. This helps protect your rights while also ensuring that someone can take over should you become unable to care for yourself or you foresee another triggering event that would require your appointment of an agent.
Springing power of attorney requirements may differ depending on your circumstances. However, the process of establishing a springing POA typically follows these steps:
Step 1 – Designate Your Agent(s)
Determine the trusted person you wish to handle your matters. Choose an agent capable of managing your medical, legal, and financial affairs.
Ensure they do not have a conflict of interest that could compromise your legal rights. Check with potential agents before you appoint them to ensure they are comfortable acting on your behalf.
Step 2 – Choose the Agent’s Powers
You can limit the powers a POA grants your agent. While a general POA will allow the agent general power to handle a broader scope of tasks, a limited power of attorney lets you establish the extent of their authority.
Step 3 – Create your POA Form and Add Details
Once you have chosen your agent and determined their powers, complete the POA document. Consider starting with a template and adding the details specific to your situation. At a minimum, your form should include:
- Your full name and address.
- The name and address of your authorized agent.
- The name and address of a second agent should the first be unwilling or unable to act on your behalf.
- The decisions your attorney in fact can/cannot make on your behalf.
- Whether your agent is entitled to reasonable compensation for their assistance.
The details of your springing POA will differ depending on your specific situation and your state (where they’re recognized).
Step 4 – Check Notary Requirements in Your State
Signing regulations differ between states. Some have strict requirements for notarization when creating a springing POA. You may need to sign before a notary public, a witness, or multiple witnesses. Some states have no statutes governing signature requirements for a POA.
Before you sign a springing power of attorney form, review your state’s signing requirements. Signing prematurely can invalidate the form and require you to start over.
Consider using a notary acknowledgment form template and altering the details to fit your state’s regulations.
Step 5 – Sign Your POA
After reviewing witness and notary requirements, sign your POA in the presence of the appropriate individuals. Once signed, the springing power of attorney remains dormant until the conditions you specified arise. In most cases, this means your designated agent will not have authority until you are proven incapacitated.
Step 6 – Use the Springing POA Form
When your agent takes on their responsibilities as outlined by your springing POA, they may begin handling your financial matters, such as paying bills. If your POA involves health decisions, they may make decisions about your medication, treatments, or resuscitation in accordance with your wishes.
To confirm that their decisions are consistent with your concerns, doctors, financial institutions, and other third parties may ask for an affidavit. Such affidavits typically confirm that:
- The power of attorney is in effect.
- The POA has not been revoked by the principal.
- The principal is not deceased.
Consider filing an affidavit as a reference for your agent to access should it become necessary.
Springing Power of Attorney Sample
Download a springing power of attorney template below, available in PDF and Word formats.
